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tv   Charlie Rose  PBS  November 28, 2012 12:00am-1:00am PST

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ratified the document if it said the application of this document and what it means shall be whatever the supreme court says it means. from age to anal. nobody would have ratified that document. it is a dead document to you? >> i like to say an enduring document. >> rose: but you don't say it is a living document? >> it is not living. it is not living. >> rose: justice scalia for the hour next. funding for charlie rose was provided by the following.
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>> rose: additional funding provided by these funders. >> and by bloomberg, a provider of multimedia news and information services worldwide. >> from our studios in new york
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city, this is charlie rose. >> rose: we are at the supreme court of the united states in washington, the nine justices that occupy its chambers carry a heavy responsibility. they have the final say on the law of the land. the principles and idea that guide their decisions are the subject of heated debate. justice antonin scalia is the longest serving justice currently on the court, he is the leading voice for a conservative judicial philosophy known as textualism, some talk about it as originalism. it asserts that laws must be interpreted as they were understood by the men who wrote them. in 2006, justice elena kagan, then the dean of hear extraordinary law school, scalia's alma mater says he is the justice who has had the most important impact over the years on how we think and talk about law. he originally coauthored a new
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book, it is called reading law, the interpretation of legal text. i am very honored to have justice scalia back on this program. so the first book was about arguing, how to make the case arguing the case. this is called reading law, the interpretation of legal text written brian a. garner -- >> as the earlier book was. >> rose: exactly. so what did you hope to accomplish with this? >> well, this back had really two objects in mind, one was to set forth the principles of interpretation that i believe most strongly in. to-wit, textualism, which you begin and end with the text. and that you give the text the meaning that it bore when it was adopted. which is originalism. the book discusses those topics in much greater depth than anything i have ever done
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before, and i wanted to get that off my chest. >> rose: why did you want to get it off your chest? >> well, i don't know. these things bubble out, you know. >> the second -- >> rose: it is at the core of your beliefs? >> yes, i would say the core of my legal beliefs, anyway. the second half, however, is quite different, and that is it says, it describes how once you go about, how one should go about being a textual list what are the rules of interpreting texts and there are rules that have been handed down through the years .. but in recent years, at least, not been systematically taught in law schools or, indeed, even systematically set forth in any publication. i think this is the first book in about a century that goes through this so-called a nonof interpretation, canons which are
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the rules of interpreting text .. which have been handed down in the law. >> rose: are there a specific number of canons. >> no and some would include some we didn't and might omit some we included, but we included the ones we thought were well-known and valid. we omitted some that are well-known but in our view have no validity. the book does not purport to be descriptive, it purports to be normative. it says what a judge or a lawyer interpreting the text ought to do. >> rose: as you see it? >> as well as we see it, there is a difference on this. >> rose: you recognize that? >> i do. i do. but. >> rose: it is not the last -- >> i also recognize that there is right and wrong. >> rose: your side of the argument, the constitution and how we should understand it. >> explain it to me.
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>> well, the constitution is a legal text, and that's why it is discussed in this book on interpreting legal texts. nothing in the document says that the supreme court will be the last word on what it means, at least in normal times. the reason we have become the last word is set forth in marbury versus madison. marshall says, look this is a legal text. judges always have to treat the situation where legal texts contradict one another, where the con dick hundred is between two statutes, says john marshall, the more recent statute prestrails it has implicitly repealed the older one, but where the conflict is between a statute and a super statute, the constitution. >> rose: a canon. >> the constitution must
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prevail. so that is our approach to the constitution, it is the same as our approach to statutes. you start with the text. it is lawyers work. it is not politicians work. it is not sociologist' work. it is not economist' work. it is the work of interpreting, giving the fairest reading to a text. without which democracy doesn't work. i mean the only way you can have democracy the is an extensive nation is through laws, and if you don't give those written laws the meaning that they were understood to have by the people who adopted them and more importantly by the people to whom they were promulgated, democracy doesn't work. >> rose: constitution was written in what year? >> well, it was written in 1787, ratified in 1789.
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and we have to understand it in terms of that time? >> well, we have to understand it at that time with regard to those phenomena that existed at that time. now, there are new phenomena that have come into being since, but as for the ones that existed at the time, when you have vague provisions such as the eighth amendment, which actually was not in the original constitution but that is 1791 but that is pretty old too, right? that is the cruel and unusual punishment clause. it was absolutely clear that that provision was not understood to abolish the death penalty. it couldn't be clearer. every state had the death penalty. it was the only penalty for a felony, nobody thought that the bill of rights made that unconstitutional. but i have sat with four
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colleagues, none of them on the court any longer who thought the death penalty wasn't unconstitutional because society's mowers have, mower mower mores have changed and what used to be thought and cruel and unusual is now different. >> that is rat it is applying the judge's notion of what ought to be. and what .. what ought to be is to be determined by the people, not by a very select segment of the people consisting -- >> rose: by that you mean the legislature? >> the legislature and the people who can modify to the constitution. i mean, it has an amendment provision, prestietionly because they envisioned that some future society may want to change things. but, you know, the key question, with regard to textualism andism
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meaning versus the opposite view, which is the constitution evolves and the supreme court says how it evolves. the key question is simply this. would the american people have ratified the document if it said the application of this document and what it means shall be whatever the supreme court says it means from age toçó age. nobody would have ratified that document. >> rose: it is a dead document to you? >> i like to say an enduring document. >> rose: but you don't say it is a living document? >> it is not living. it is not living. >> rose: but how could they know and understand how complex the world would become? >> well, they could not understand how, but they could certainly understand that. it would change, and that is
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why, you know, in the bank of the united states case, marshall says, since this is a constitution and has to provide for unimaginable events in the future we should give its words an expansive construction. now, you wouldn't need an expansive construction if you could change your mind, if the court gave ate narrow construction and then some future supreme court said well that was okay in 1812, but, you know, in 2012 no we have to construe it differently. marshall did not believe that. he said you have to interpret it to give ate lot of room for future development because that interpretation that you give it today it will bear forever, that is what everybody thought. >> rose: you don't like the word trick strict construction? >> no, i think strict constructionists give a bad name to textual lists. >> texts should be interpreted
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reasonably .. not strictly. >> rose: right. >> rose: it is the strict that bothers you. >> it is the strict that bothers me. >> and reasonable is what -- >> reasonable, and the example i give is the first amendment, you know, it reads congress shall make no law abridging the freedom of speech or of the press. now, speech and press does not include handwritten letters, does that mean the first amendment allows congress to censor handwritten mail? of course not. the reasonable interpretation of that provision is that it guarantees freedom of communication. >> whether it is written speech or all speech or semiphor or telegraph or whatever or the internet. >> rose: this is what you say in a final personal note at the conclusion of the preface, your judicial author, that would be go you, know some and fear there may be many opinions he has joined or written over the past 30 years that contradict what is
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written herewither because wisdom has come late. i love that idea. wisdom has come late. worst still, your judicial author does not square the opinions he joins or writes in the future will comply with what is written here written in this book. whether because of wisdom continues to come late or because a judge must remain open to persuasion by counsel, yet the prospect of gotchas for past and future inconsistencies holds no fear. i thought that was pretty clever. >> i had to cover myself. >> rose: well it shows as someone has said a scrappy fellow. >> well, i guess i will accept that. >> but i mean you want. >> rose: but i mean you want to say that -- everything that i say in here may be contradicted by something that i have said before in a judicial opinion
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somewhere? or somewhere in the future? >> or programs some time in the future. or perhaps some time in the future. >> i am infreegd by the word wisdom that that come later. how has wisdom come to you later. >> i was already pretty old, if age brings wisdom, when i came on the court. i was 50 years old and had been thinking a lot about the constitution, about interpreting statutes and i can't say that any of those fundamental views have changed, just as i don't think my colleagues' views have changed and i don't try to persuade them about fundamental beliefs. >> rose: what ideas, what writer, what justice, what -- >> as far as my approach to what this book discusses, is concerned i am not sure it is any particular individual, it is just i it is just what one does
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with language. i had a lot of background in language. french and german. >> rose: the row imagines languages. >> and used to correct my grammar in the opinions. >> rose: i bet you loved that. >> the court of appeals opinions always used to end for the foregoing reasons it is hereby ordered that the judgment below is affirmed, and it used to drive them up the wall. you can't say order that it is affirmed. you order that it be affirmed. that was the -- i was the only judge on the court of appeals who had that ending, so, yes -- >> rose: with pauses to my father -- >> so i have that background. i had eight years of latin, i guess seven years of greek, so i dealt with text a lot. but i am interested in the mind of justice scalia and how it got there, because i talked to four of your interns, law clerks, we say, you say.
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>> right. >> rose: you know what they said about you? he said he wants us to challenge him. that's what he likes. he likes the idea of conflict of ideas. >> i do that. that's very true. >> rose: where did that come from? >> i don't know. i like to argue. it is one reason i like the law, i think. i like to figure out where the truth lies between two between two different assertions. i don't know. it is who i am. >> rose: when you look at the justices on this court who do you admire the most? >> i like one of the predecessors in my seat, on the court, i do not jackson. >> rose: there you go. >> who was fdr. >> rose: a prosecutor. >> former prosecutor. >> rose: as nuremberg. >> and also former attorney general. >> rose: what did you like about him? >> i liked about him that he was
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usually on the right side of the case, which means he was adhering to the text and secondly he was a magnificent stylist, he was the best writer on the court in the 20th century, if not forever. he wrote beautifully. >> rose: you love language, don't you. >> i love language. and for that background, you know, i am a snoot, it stands for syntax, nerds of our time. it refers to people who get upset when they hear, infer -- infer to mean imply or when they hear i commented recent think -- >> rose: you hate bad grammar. >> oh, gosh. i was on an airline recently and i commented on this and over the pa system and this is driven into people's ears hundreds of thousands of times, by someone who is hired to communicate, the rules of the faa require that
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your baggage is under the seat -- >> rose: is under the seat. >> i mean, it tears me up. >> rose: a that is when you raise your and and pardon me. if i may. >> that is -- and brian is a snoot and i am a snoot, that's how we got together. >> what is it about the two of you? i mean, -- i mean why does this collaboration work? >> oh, i don't know. both -- because we both have this respect for language. his strengths are not mine, and mine are not his. portions of the book you can tell are brian's. >> rose: right. >> portions are mine. most of it i think you can't tell who, because we really did collaborate on the whole thing. he reviewed mine and i reviewed his, but, no, it was a very happy collaboration. >> rose: you probably have never bought into any idea that
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a judge is influenced by what he had for breakfast? >> behavioralism? >> no. judges make mistakes. i am prepared to believe that some judge was affected by what he had for breakfast, but i am not prepared -- >> rose: or in his life or whatever. >> i am just not prepared to say that is okay. >> rose: exactly. you will accept it could happen but it is not okay? >> i it is not okay. and that's one of the -- one of the evils of the evolving constitution, you see, inçó the bad old days. it wasn't that the judges didn't distort the constitution. oh, they distorted it a lot. including the supreme court. >> rose: distorted the constitution? >> yes. made it say things that it didn't say. but in the bad old days, they did it the good old-fashioned
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honest way, they lied about it. and today you don't have to lie anymore. if you believe in evolving constitution, oh, yeah it used to mean that when it was written it meant that but it is a new age and it is up to us to -- to get the constitution up to date. >> rose: if i said the constitution is what the supreme court says it is -- >> right. >> rose: -- what would you think of that? >> i would say that is the usual rule for political accommodation in our society. i wouldn't say it is the invariable rule. my authority to interpret the constitution is no different than the authority of the president or of the members of congress. we ought -- >> rose: three branches of government. >> we all take the same oath to uphold and defend the continues constitution. now in, defend and defend the constitution. >> in normal times we are better because it is a lawyer's document, the job is interpreting the text. lawyers are academy at interpreting texts.
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that is what lawyers do. so in normal times the supreme court will be deferred to. but, you know, i don't think it is unthinkable that a president would say, well that is what the supreme court says but i don't think the constitution means that, and i am not going to accept it, which indeed lincoln did. lincoln was a good lawyer, and he simply ignored some opinions of the supreme court. >> rose: because of the stress of wartime? >> that was part of it, yes. >> rose: habeas corpus? >> habeas corpus. yes. and, well, fred scott, yeah, he said he would be willing to -- he would obey the court in that case, dred scott had to be returned to his master but he said i do not have to accept the interpretation of the
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constitution with regard to future cases. and i do not believe that the rule of dred scott is the law of the land. >> rose: do you feel like you are crying in the wilderness and losing the argument? >> >> #02:ing not let myself think such. sometimes you feel like like the frodo in the lord of the rings, frodo sold yerg on, soldiering on. >> you don't want to accept that? >> no. and i don't think it is true, more over,. >> rose: justice souter who used to sit with you, do you remember him? >> oh, very fondly. i miss him. >> rose: really? >> he sat next to me the whole time of his tenure here. >> you are fond of the people who appointed him as you know. >> this isçó unusual.
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there are so many justices who were -- >> rose: you didn't surprise ronald reagan. >> probably not,. >> rose: confirmed by 100 votes -- >> 98. >> rose: 98. >> barry goldwater and -- were not present. >> rose: we know where barry goldwater -- both of them would have been with you. >> probably. >> yes of course they would. >> but that was, what, bb, before bjorn borg. >> borg. >> rose: do you think we will get back to before borg and do you be known that with great bain? >> we won't get back to that -- we will get back to that if and when the supreme court gets off the evolving constitution notion. look, the supreme court gets off the rolling constitution notion -- i mean i hear you saying the problem with the supreme court is that the living document has
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force and has legs and people believe in it, that's the problem with this court. >> it is a seductive philosophy, the constitution means whatever i care passionately about. if i care passionately about it it is in there. >> rose: that's not what justice breyer would say. >> well he wouldn't say that. >> rose: do you think he believes that? >> that is the attraction of that philosophy. whatever you care passionately about is in the constitution. the justices believe that and the people have come to believe it. it is a hard job to call them back to a much more modest approach which is it says what it says. and if you don't like it, adopt an amendment. and for most changes you don't need an amendment, the death penalty, for example, you don't have to amend the constitution if the american people have really set their face against the death penalty, just abolish it state by state. or suicide, we had a case involving whether it violated
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the constitution to prohibit suicide. g and we said, we are not yet prepared to hold that. that's what we said. stay tuned in the fullness of time we will make -- we may change our mind. you don't need us to say. if the american people want to allow suicide they can do what washington did. i think washington has done. simply allow it by statute. >> rose: that is the system that you like to see? >> the point is not that i like to see it. it is a system we thought we had. but to come back to your question about whether the confirmation process is going to change, i think it took the american people 30 years to figure out what was going on, all of this evolving constitution stuff begins with the warren court, in force with the warren court. and once the american people figured out what was going on, the court was revising the
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constitution term by term, well my goodness, the old criteria for selecting justices and even lower court judges, they are not -- he is nice, he is a good lawyer but nice if he can read a text but the most important question will this person write the new constitution that i like? that is what the borg hearing was all about and that's what all the hearings since have been about, you know, judge so and so, well you think there is a right to xy? you don't? well, i think it is there and my constituents do. >> rose: what would be an ideal system for this and what should be the questions amount an appointee, a nominee to the supreme court? >> currentl currently? that isy the question, as much as i dislike the spectacle of confirmation hearings now, i prefer them to the alternative. as long as the court is revising the constitution, by god, the
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people ought to have some say and they ought to be able to ask the nominee, you know, what kind of a constitution are you going to give us? that's the most important question. why shouldn't they be able to ask that? so, you know, i don't like it, i would like to go back to the old system, but not if the supreme court is rewriting the document. >> rose: you talked about your affection for justice suitor he said originalism has only a tenuous connection to reality. >> he has a way with words, david is a very good writer. well,. >> rose: tenuous connection to reality. >> i don't know what he means by that. >> you know a lot more about what he means than i do. >> so we are both at sea. if what he means is -- a tenuous connection to what rules ought to govern modern society, if that's what he means by reality, it may well be.
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he also. >> rose: he also says originalism would all have led the court in 1954, 1954. >> i know what you are coming up with. >> rose: let me finish it the brown versus board of education. >> exactly. >> rose: would have looked at the court in 1954 to affirm in ferguson ruling of investigate but equal instead of its decision in brown versus board of education. >> two answers. number one, the firstñi justice harlin the dissented in mess city versus ferguson and i think i would have been with his in the dissent because as a textual ist and i have a provision saying a state cannot deny equal protection of the laws, and here you have, mississippi law or louisiana law, which required all blacks to ride in a separate car? i think i would have agreed with him. what is the
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less important answer. the more important answer is? >> so what? so. >> rose: so what? >> so what? i will stipulate, i will stipulate that you can do some things with an evolving constitution that you can't do with fidelity to the original constitution that the people ratified. okay? i am also stipulate that kings can do stuff that, good stuff that a democratic society could never achieve. that hitler produced a marvelous automobile and mussolini made the trains run on time. so what? that doesn't demonstrate what is a proper interpretation of a constitution. >> rose: or churchill said democracy -- >> that's right. >> is better than everything else, it is a worse system but better than anything else. >> that's it. look, i don't have to proof that textualism is perfect, i just have to prove it is better than anything else. and i think it is better than the system in which --
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>> you have not changed one iota on this in terms as you have listened to people who have wanted to convince you otherwise? you know, that somehow at some point and in some cases it has to be a living document? >> no. look, the main thing is what is valid? what is valid? and the only power that i have is to apply the constitution. i was not given the power to amend the constitution. i just wasn't given that, and it is a real distortion of democracy to have a -- >> by definition you are amending the constitution if you interpret it? >> if you give ate meaning that it did not have when the people ratified it. >> you are doing what the legislature's work which is amending the constitution? >> or the people's work. >> rose: the people's work. >> that doesn't mean that a constitution cannot accommodate
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change. of course it can accommodate change. >> rose: how can it accommodate change. >> the first amendment applies the way it did to phenomena at the time. >> rose: right. >> for example, one of the -- >> applies to the internet. >> one of the evolution i abhor is new york times versus sullivan it may indeed be a very good system that you can libel public figures at will so long as somebody told you something, some reliable person told you the lie. >> rose: right. >> that you then punishable sized to the whole world, that's what "the new york times" writers versus sullivan says,ed that would be a good system and the citizens of new york state could have adopted it but for the supreme court to say the constitution requires that, that is not what the people understood when they ratified the first amendment. nobody thought that libel, even libel of public figures, was permitted was sanctioned by the first amendment.
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where did that come from? who told -- who told earl warren and the supreme court that what had been accepted libel law for a couple of hundred years was no longer -- >> rose: why do you think the court ruled that way? >> because i think they thought -- and they could well have been right that it would provide for a more robust political discussion and what not. >> rose: and people on the other side would find in the constitution because they believed it is right? >> the issue is, who decides? who decides what is right? and it is the people. the background rule is democracy. and the rule of democracy is, the majority rules. now there are some exceptions to that. in the liberal democracy, most of them are in the bill of rights, the majority religion, speech and so forth. but once you -- once you depart from that rule and have a very elite segment of society
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deciding what ought to be, that is just not -- >> rose: it has a tenuous connection to what we are talking about but suppose we find our self election after election one winning the electorial college and not the popular vote? would that bother you? >> >> yeah. i suppose it would bother me and certainly consider a constitutional amendment if it happens all the time, yeah, but i would not -- i would not feel authorized to announce that the constitution has now changed. >> rose: does the court -- does the court that you know read the paper? does it understand the political dana milk of the moment? >> i don't know. i would have to ask each -- i think so. >> does it affect you? >> i hope not. >> rose: but is it possible that you -- >> no, i wouldn't be as
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unpopular a person as i am as i let it affect me. >> rose: you think you are unpopular because of protests here and there? >> well, yeah. when you want to designate -- on the supreme court -- >> i am. >> rose: yo you are there for them, aren't you? >> yeah. >> why do you think that is? i mean you have a, you have a great charming personality. you are a pretty nice fellow. i mean, you have friend across all aisles a you and ruth bader ginsburg and other people say nice things about you, but you are. you are the guy they look and say -- you stand in the way. >> that's right. >> rose: they want the forward march of history. >> that's right. >> rose: and justice and -- >> think -- >> rose: that's the way they see you. >> i think it is simply because of the consistency of my --
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>> rose: do you take some pride in that, though? i bet you do. >> a man who has made no enemies is probably not a very good man. >> rose: or franklin roosevelt who said i am proud of every enemy i have or something like that in a speech that he made? >> my favorite line is lyndon johnson who said every time he appointment as new judge he makes one ingrate and three enemies. >> rose: that's right. when you lack at the court today, not forward looking i know that is out of bounds for anything we might talk about, what has been the toughest decision for you since you have been sitting here? just explain to me for a second. is it easy to understand why patent law is hard for you? >> well, because you are dealing are concepts that are not well-defined in the law, that
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have a long tradition and you are applying it to all sorts of new inventions that, you know, the internet and stuff like that, it is very complicated. i am not an engineer. >> rose: no. really? i never -- you never thought about it, did you? >> now, if you want to say, what was the hardest case not in terms of figuring out the right answer -- >> rose: or even the consequence. >> yes, the consequence, i remember it was pretty early on in my time on this court, we had a case in which a very wealthy man rancher and his wife had adopted a child of a young man and woman on an indian reservation who had the child out of wedlock, and they gave it -- they gave the child to the ranch and raised the kid, i
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think the kid was five years or, five years or so by now and the tribal council demanded the child be taken out of that family where a rich rancher had given him all the benefits because there was a federal statute which said that no child of reservation indians could be adopted by an off reservation without the consent of the tribal council and we had to turn that child over to the tribal council. i found that very hard. but that is what the law said without a doubt. >> rose: how about the ruling on obama care as we know it today? >> is that hard? >> it was hard in one respect, i think the hard question was the commerce clause question. >> rose: right. >> i don't think the tax question was a hard question. the commerce clause question i think was hard. i could have seen that coming
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out the other way. but to be in the majority on that, but lose on the tax question, i would never have guessed. >> rose: i mean, i was totally surprised by the tax aspect of it. >> tell me about it. >> rose: i presume you have -- it came out of left field to people or right field, which was it? >> and it was a tax for one purpose but not for another purpose. anyway, water over the d a.m. >> rose: i know you always say that. you sort of say to people about bush versus gore. get over it, get over it. >> >> rose: yet it decide add presidential election. >> the supreme court was going to decide it. the issue was -- >> rose: you blame gore because he. >> he wanted judges to decide it so judges decided it.
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>> rose: you have no regret about that, do you? >> oh, it was an easy case, it really was. >> rose: why was it so easy? >> look,. >> rose: you stopped the florida court -- >> yes, but on a principled question of whether the florida courts violated the constitution. the vote was seven to two. it wasn't even close. the only issue that was five to four was whether we should put an end to this nonsense and immediately decide the case or give them another couple of weeks while the whole world was laughing at us and we couldn'tn't -- >> rose: the country couldn't decide who was present. >> that's right and we couldn't have a transition. >> rose: but people think it was a political decision. that's part of the reason they think it was a political decision. not so much -- they think it was a political decision because th politics of the country made you say we have got to do this the way we did it in order to get this over with. the court decided that in the
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interest of the national -- in the national interests they have got to bet this over with. >> the remedy for a case is always subject to the court's discretion. and always depends upon the realities on the ground. not the law, but what the remedy will be. whether you tell them to do it immediately or give them another two weeks, that is not an issue of law. it is an issue of practical at this. practicality. >> how often do you sit there, you and eight? .. you say brethren. >> brethren and sister. and you think theable council for the side you are making an argument that you think is right is making a bad argument? what do you do when that is happening? >> >> hitting a nerve, am i? >> well, no, yeah, when i think the -- good points for that side -- for that matter good points on the other side -- >> rose: in the interest of
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what? in the interest of intellectual honesty? >> oh having help on the table, the best arguments, i mean -- >> rose: that is what you like. >> that's why we listen to these guys because supposedly they know the case better than we do. they have been living with this case, often for years, and we listen to them because they supposedly know more, and if somebody displays a fact that he knows less, you know, i try to intervene and say, well, you know, what about this argument? >> rose: okay. but suppose, let me say suppose, in fact, you could -- you have already decided hav having reade briefs you pretty much knew where you were going to go unless something surprises you to change you and you realize that the person who was trying to make the argument that you believed in was not doing a very good job of arguing, i mean what would you do? how would you do that? back to your first book and not your second. >> well, my first book was from the point of view of the person
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arguing -- >> rose: no, i understand that but it was an -- >> well, i think -- >> rose: in other words, do you want to see your side as you believe in, because you believe in it, and that counsel is going to lose? >> well, i don't think i am withdrew meek in this. i am am not unique in this case. they will try to get counsel to make the strongest arguments. >> rose: do you think the united states is well served by the supreme court it has? >> >> you know, there is an old line about the british stiff upper lip. it is the only england we have. and i could say about the supreme court, it is the only supreme court we have, you know. >> rose: yes? >> yes. in other words. >> rose: in other words look -- >> given. >> rose: given what? >> well, given the philosophies of the judges, i think they are
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honest men and women as i think they decide the case fairly and honestly according to their likes. they ought to have different likes, some of them. >> rose: you would say that about the obama -- healthcare reform act as well? >> well i dissented in that case. >> rose: yes, i did. what would you say about the warren court? >> was that a time that you believed that the judicial activism -- >> that's where it all began, i think. >> why did it begin then? >> i don't know why. warren was a very influential person, he was less a lawyer than he was an executive. >> rose: and a politician. >> and a politician, yes. >> and he probably. >> rose: he will probably be judged as one of the most influential chief justices. >> he probably will. yes. he probably will. >> rose: boy that must -- does that hurt? >> rose: does that hurt? does
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it? >> rose: but assess your own performance so far for me. i mean by that. >> grade it. >> rose: yes. >> i don't want to give -- >> rose: he said that to me. >> okay. >> rose: he said -- >> you ask this question all the time? >> rose: i do. i ask people to grade themselves. but i am serious though. have you had the impact that you believe you would like to have? and the answer has to be no. >> well it depends on what you mean by the impact. >> rose: the impact is you would like everybody to see it your way. >> but that doesn't happen. when i came on the court, the word was, you know, scalia will be a dissent. i am such a charming fellow. >> rose: is that what he said? >> no. >> they didn't say the charming part but they expected me. >> rose: to be a consensus guy. >> a consensus builder.
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i can't be a consensus builder. >> rose: because? >> because i can't trade. you see, bill brennan, who was an evolutionist, he could deal. he could go to his colleague a, you know, i want to change the constitution this far, and, gee, bill i can't go that far. well, what about this far? he can deal. now i can't deal. if i am -- if i am doing the text, what can i say? you know, i am halfway between what the text really means at what you would like it to mean is that the deal i am going to do? you can't do it. look, i am not -- i am not discouraged. >> rose: go ahead. >> bill brennan was not in the majority most of the time either, but he was, to my mind, the most influential justice of the 20th century. he changed this court enormously, not by being in the center,. >> rose: the most influential
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judge of the 20th jury trial -- >> that's what i would say. >> rose: because? >> because he had a clear judicial philosophy, was always on the left of the court and always pulling the court to the left, and many of his views were ultimately adopted. >> rose: but did he act like a linton johnston might act as politician in dealing with congress? i will give you this, i will give you this. i just want to get here because that's exactly what abraham lincoln did in getting the 13th amendment passed. >> and i think that is what bill brennan did, because he could do it, because he could do it. >> rose: and he is less virtuous than you are? >> it makes him more effective as getting supreme court opinions. >> rose: i was asking about sort of integrity and virtue. >> well. >> rose: well -- >> he had his view of what a judge ought to do. it was different from mine. i like bill brennan. >> rose: i am not asking like. >> i wouldn't like him if i thought he was contemptible. he was okay.
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but, look, i don't measure my accomplishment on the bales of, you know, how many majority opinions i have managed to cobble together, but on the basis, principally of .. textualism, kind of originalism stands in better repute today than it did when i came on the court. and it surely does. i mean there is one other thoroughgoing textual list and originalist on the court. >> rose: judge thomas. >> judge thomas, justice thomas. >> rose: i'm sorry. >> we are close but not thoroughgoing i would say, originalism, i am not going to name names. originalism is a respected approach to constitutional interpretation. as i told you, harvard law school has professors who believe in it. it is no longer dismissed out of hand, which used to be the case. i mean -- we would never even
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have counsel argue what the original meaning was. they would just argue the last supreme court case. and reason from that. they wouldn't even -- when i first came on the court i had to do all of the research about what the original understanding was. that is not true anymore. there are at least two of us up here who care about what it is the people ratified, so counsel will now address those issues. >> rose: let me just understand this. textualism and originalism, what is the difference, if anything? >> well, you can be a textual -- in fact, everybody will profess -- we begin as always with the text. it should begin and end with the text. but you can be a textual list and refer to the eighth amendment .., the cruel and unusual punishment clause, but give that clause a meaning it did not bear when the people ratified it, the constitution
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doesn't change. it is for the anxious and its meaning is a rock. >> rose: john marshall has said this. >> john marshall -- >> rose: does it say something different or not. >> i don't know what sure academy would say or not,. >> rose: the interpretation of legal text is the sub title. second half is the rules of how to interpret a text, some of which -- many of which are so old they are still in latin. >> rose: what is a rule. >> the canon, when you have a general word, at the end of a series of words, it means things of the same type, if you say, you know, dogs, cats, gerbils and other animals, and other means means other domestic animals it doesn't mean elephants and tigers and what not, okay and any lawyer who
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doesn't know that rule when he writes a will, so that he writes, i leave, my chair, tables, beds and all other property to my son and all other property is going to be interpreted to mean only personal property like chairs, so that is one rule and there are a lot of others. they are not all common sense max ims like that, some are maxims just from the tradition of the common law. for example, the maxim that if there is ambiguity in a criminal statute, the defendant wins. it is called the rule -- >> rose: do you like that idea? >> oh, yes, i do. >> rose: i do too. >> who is going to read this. >> rose: who is going to read this book? >> oh, i am sure -- >> rose: exactly. my question is who are you writing it for? >> practicing lawyers will read the second half, because it is the only compendium of all of the interpretive rules.
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i think law professors, those interested in the law. you don't have to be a lawyer to be interested in what the supreme court is doing or thinks it is doing. i think it is a window into that world. it describes what the alternative modes of interpretation are and if one is interested in what -- you know, what real conflict in the court is, it is not -- it is not politics, it is not democratic versus republican, it is the different approaches to interpretation that are described in this book. >> rose: even though i said i would never ask you a question that i knew you hadn't thought about before and hadn't been asked before and hadn't dismissed before -- >> well -- you already asked one about how i would grade myself. >> rose: that is true. and you didn't answer yet. >> i am not going to. >> but it is -- and what this
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conversation shows the passion that you feel about this idea, you know, this being not a strict constructionist but being a textual list that is at the core of your being. >> it really is .. >> i mean that is your life's fight. >> it is my life's fight. >> your life's fight. >> yes, it is. i think it is worth the fight because i don't think you can run a democracy without it. >> rose: that's the danger? >> that's the danger. >> rose: your first language i assume is english you are, your second language i assume is italian? >> no, no. it is a same of my life that i don't -- i don't know italian at all, my father would never speak it at home,. >> rose: because of immigrant pride or something? >> no, no he would have spoken sicilian which is almost, you know there is sicilian grammar books it is so different from high italian and you only know your local dialect it means you are illiterate, because all over
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the newspapers are in tuscan. >> rose:. >> it would have made my father very happy if i would ever -- >> rose: and have a wonderful accent because i -- >> rose: reading law, the interpretation of legal athletics antonin scalia and brian garner. we referred earlier to snoot. >> brian is without a doubt the foremost philogist in the world he is is the editor of black law dictionary and several strolls on american english usage and on legal usage, so he is the real thing. >> rose: so are you. reading laws, the interpretation of legal text. we are here at the supreme court, justice antonin scalia. thank you for, first thanks to him and secondly thank you for watching. we will see you next time.
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>> rose: funding for charlie rose has been provided by the coca-cola company, supporting this program since 2002. and american express.
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additional funding provided by these funders. and by bloomberg, a provider of multimedia news and information services worldwide. be more, pbs
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>> this is nbr. captioning sponsored by wpbt >> tom: good evening. i'm tom hudson. conagra launches its recipe for growth, spending nearly $5 billion for private label food maker ralcorp. >> susie: i'm susie gharib. greece gets a badly needed bailout and avoids bankruptcy.


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